Altaranesi v Industrial Relations Commission of New South Wales
[2011] NSWCA 351
•18 November 2011
Court of Appeal
New South Wales
Case Title: Altaranesi v Industrial Relations Commission of New South Wales Medium Neutral Citation: [2011] NSWCA 351 Hearing Date(s): 9 September 2011 Decision Date: 18 November 2011 Jurisdiction: Before: Campbell JA at [1]
Whealy JA at [111]
Meagher JA at [112]Decision: Summons dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: ADMINISTRATIVE LAW - prerogative writs - privative clause - s 179 Industrial Relations Act 1996 - effect of Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 - whether privative clause effective to exclude power to grant prerogative relief on basis of error of law on the face of the record
ADMINISTRATIVE LAW - jurisdictional error - whether Full Bench of Industrial Relations Commission invoked wrong source of power - ss 187, 188 Industrial Relations Act 1996
ADMINISTRATIVE LAW - jurisdictional error - whether factual error concerning presence of interpreter was jurisdictional error
ADMINISTRATIVE LAW - jurisdictional error - whether refusal to regard misunderstanding of Commissioner as reason for granting leave to appeal was jurisdictional error
ADMINISTRATIVE LAW - jurisdictional error - whether Wednesbury unreasonableness in refusing to hold documents provided as part of settlement as inadequate
ADMINISTRATIVE LAW - natural justice - whether bias
INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether power to revert to conciliation after arbitration commenced - ss 86, 87 Industrial Relations Act 1996 - Industrial Relations Commission Practice Note No. 17
INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether Full Bench of Industrial Relations Commission has unremoveable jurisdiction to supervise activities of a Commissioner
INDUSTRIAL LAW - Industrial Relations Commission jurisdiction - whether applicant is entitled to merit-based appeal without first establishing error of law
PRACTICE AND PROCEDURE - whether UCPR 20 applicable to Industrial Relations Commission (when constituted otherwise than as the Industrial Court)
EVIDENCE - challenge in one court to accuracy of transcript of hearing in another court or tribunal
Legislation Cited: Australian Courts Act 1828 (Imp) (9 Geo IV c 83)
Industrial Relations Act 1996
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Veterinary Surgeons Act 1986Cases Cited: Builders Licensing Board v Mahoney (1986) 5 NSWLR 96
Director General, NSW Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 77 NSWLR 159
Eastman v R [2000] HCA 29; (2000) 203 CLR 1
Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684
Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403
Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245
R v M [1999] QCA 269; (1999) 107 A Crim R 267
Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422; 79 ALJR 881
Re Minister for Immigration and Multicultural Affairs; ex parte Holland [2001] HCA 76; (2001) 185 ALR 504
Sara v Balasubramanian (NSWCA, 12 April 1995, unreported)
Tareq Altaranesi and the Director General of the Department of Health in respect of Sydney South West Health Services [2010] NSWIRComm 164
Tareq Altaranesi and The Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health [2010] NSWIRComm 1037
Vakauta v Kelly (1988) 13 NSWLR 502Texts Cited: JD Heydon, Cross on Evidence 8th Australian edition 2010
Category: Principal judgment Parties: Tareq Altaranesi (Applicant)
The Industrial Relations Commission of New South Wales (First Respondent)
The Director General, NSW Department of Health in respect of Sydney Local Health District (a part of the NSW Health Service) - sued as Sydney South West Area Health Services (Second Respondent)Representation - Counsel: Counsel
In person (Applicant)
Submitting Appearance (First Respondent)
A Britt (Second Respondent)- Solicitors: Solicitors
Unrepresented (Applicant)
Crown Solicitor's Office (First Respondent)
The Director General, NSW Department of Health (Second Respondent)File number(s): 2011/143743 Decision Under Appeal - Court / Tribunal: Industrial Relations Commission - Before: Kavanagh J; Grayson DP; Connor C - Date of Decision: 09 December 2010 - Citation: Tareq Altaranesi and The Director General of the Department of Health in respect of Sydney South West Health Services [2010] NSWIRComm 164 - Court File Number(s) IRC635 of 2010 Publication Restriction:
JUDGMENT
CAMPBELL JA : The Applicant was previously employed by the Second Respondent as a hospital assistant at Royal Prince Alfred Hospital. His employment was determined, effective from 19 January 2009.
The Applicant began proceedings against the Second Respondent in the Industrial Relations Commission of New South Wales under s 84 Industrial Relations Act1996 . He sought either reinstatement to his former position, or re-employment in another position.
Settlement of the Proceedings
The proceedings were originally allocated to Commissioner Macleay, and subsequently re-allocated to Commissioner Cambridge. Conciliation took place on at least one occasion (and possibly more - the position is unclear) before one or both of those Commissioners. The conciliation was unsuccessful, and eventually the matter came to be listed for hearing before Commissioner Bishop, for a hearing to start on 1 June 2010. At that hearing, the Applicant was represented by Mr Steele of counsel. The Director-General was represented by Mr Britt of counsel.
After the lunch adjournment on 1 June 2010 both counsel invited the Commission to move into conciliation, and offered an undertaking not to lodge any objection to the Commission further hearing the matter.
Later that afternoon, Terms of Settlement were tendered. Those terms, omitting the settlement sum, stated:
"In accordance with Section 84 of the Industrial Relations Act1996 (NSW), the parties have conferred on 1 June 2010 and have settled this matter by conciliation.
The terms of settlement are as follows:
1. Without admission of liability, the Respondent has agreed to pay $…
less any amount the Respondent must deduct on account of taxation ("Sum") to the Applicant on or before 15 June 2010.
2. Payment of the sum is in full and final settlement of all present and future claims that the Applicant may have against the Respondent in relation to the Applicant's termination of employment with the Respondent.
3. The parties and the Commission must keep the terms of the settlement confidential and must not disclose them to any person except if required by law, to enforce the terms of settlement, to obtain professional legal or accounting advice, to obtain advice from the Applicant's Union or to advise the Australian Taxation Office. Any matters raised during conciliation proceedings must also be kept confidential and not disclosed to any other person.
4. The parties agree that neither the applicant nor the respondent shall disparage each other following these proceedings.
5. The payment of the sum to the applicant constitutes the final term of settlement and the parties consent to these proceedings being determined as concluded by consent as soon as the sum is paid.
6. The proceeding in the Supreme Court in Case Number 13941 of 2009 are discontinued with no order as to costs in that matter.
7. The Local Court proceedings Case Number 62789/09/172 are settled with no order as to costs.
8. The Applicant to be provided with the following documents by 15 June 2010 by the Respondent:
(a) Statement of Service; and
(b) Statement of Regret.9. The Applicant at his liberty may provide the Respondent with a document to be placed on his personnel file in HR (RPAH).
10. The Applicant at his liberty may provide the Commission with a document to be placed on the Commission's file in this matter.
11. This settlement is without admission by the parties."
The terms were signed by both the Applicant and his solicitor, and also by a representative of the Second Respondent.
Implementation of the Settlement
On 10 June 2010 the Second Respondent drew a cheque for the amount it agreed to pay the Applicant under the settlement.
On 11 June 2010 an officer of the Second Respondent signed a document, typed on the letterhead of Sydney South West Area Health Service that stated:
" STATEMENT OF SERVICE
This is to certify that Tareq Altaranesi was employed by Royal Prince Alfred Hospital .
The following details of employment are provided:
COMMENCEMENT DATE: 10/08/2004
TERMINATION DATE: 19/01/2009
EMPLOYMENT STATUS: Permanent Full Time
POSITION HELD: Hospital Assistant Grade 2
LONG SERVICE LEAVE TAKEN: Nil
LEAVE WITHOUT PAY TAKEN: 16 hours
This statement of service is issued without erasure or amendment."
On 11 June 2010 the same officer signed a document that was typed on plain paper. That is to say, it bore no logo or other indication of coming from an authentic source. It stated:
"Statement of Regret
Tareq Altaranesi v Sydney South West Area Health Service
NSW IRC No. 2152 of 2008
Without any admission of liability, Sydney South West Area Health Service ("Area Health Service") acknowledges Mr Altaranesi feels aggrieved as a result of the termination of his employment with the Area Health Service.
The Area Health Service regrets Mr Altaranesi feels aggrieved as a result of the termination of his employment."
By 15 June 2010, the agreed date for payment of the settlement sum and provision of the other documents, the Applicant had not received any of them. He contacted his solicitor. He was told that the documents had been sent to the solicitor at an address that was no longer current.
A day or so after 15 June 2010 the solicitor received a letter containing the cheque that the Second Respondent had drawn, the Statement of Regret, the Statement of Service, a Notice of Discontinuance of proceedings in the IRC, and a Notice of Discontinuance of certain Supreme Court proceedings that the Applicant had started relating to his termination. The solicitor passed at least some of the contents, namely the cheque, the Statement of Regret, and the Statement of Service, to the Applicant.
Unfortunately, the cheque misspelt the Applicant's surname, and was not met on presentation.
On 21 July 2010 the Second Respondent provided the Applicant with a replacement cheque for the settlement sum, that spelt the Applicant's name correctly. The Second Respondent at the same time sent the Applicant a further cheque to cover interest for the period that the payment was late. Those cheques were banked, and were met on presentation.
The Re-Opening Application
On 22 June 2010 the Applicant wrote to the Registrar of the Commission, sending a copy to the Second Respondent, saying:
"I am applying to refresh the case, as the respondent failed to produce statement of regretful [sic] , and statement of service, which meet my requirement as agreed.
And I take the opportunity to advice [sic] the Commission that I ceased any authorization was given to Mr Majed Kheir as my solicitor, and is no longer become not my solicitor.
I wish the Commission to re-list the case, and look forward to hear about date of new direction meeting."
Commissioner Bishop re-listed the s 84 application before herself on 5 July 2010. The Applicant appeared for himself. Mr Britt appeared for the Second Respondent.
Mr Britt submitted that the Second Respondent had performed the Terms of Settlement. He tendered the cheque remittance advice, the Statement of Regret, and the Statement of Service. The cheque remittance advice had a photocopy of the cheque at the bottom of it.
At the conclusion of the hearing, Commissioner Bishop delivered an ex tempore judgment: Tareq Altaranesi and The Director General of the Department of Health in respect of Sydney South West Area Health Service as a division of the NSW Department of Health [2010] NSWIRComm 1037. After setting out the history of the matter, the Commissioner continued at [20]-[26]:
"Mr Britt has advised the Commission that the respondent has complied with the terms of settlement. Further that payment of the amount contained in the terms of settlement has been made by SSWAHS and Mr Britt tendered a document (Exhibit 11), being an SSWAHS remittance advice setting out the invoice with a photocopy at the bottom of the actual cheque.
Mr Altaranesi had advised the Commission that he has received the cheque and has not returned it.
Mr Britt also tendered the respondent's Statement of Regret (Exhibit 9) and the Statement of Service (Exhibit 10), as forwarded to Mr Altaranesi and.. [sic]
Mr Altaranesi had advised the Commission that he has received both documents, but that he does not agree with those two documents as they are not expressed in terms that he wishes.
The terms of settlement did not require that Mr Altaranesi had to agree to the wording of either the Statement of Service or the Statement of Regret.
It is my view, looking at the Terms of Settlement, particularly item 5, and applying the decisions of the Commission in Shunmoogam Pragalathan Pillay v Central Sydney Area Health Service [2003] NSWIRComm 297, Timothy Fox v GIO Australia Limited [2002] NSWIRComm 318, and Josephine Bakar v the [sic] Department of Education and Training NSW [2009] NSWIRComm 1082, that it is appropriate that in all in the circumstances; conciliation having taken place between the parties, agreement having been reached and executed in terms of settlement tendered before this Commission, that pursuant to s.174 of the Act, the Commission hereby dismisses this application.
This matter is concluded."
Section 174 Industrial Relations Act provides:
"If a matter that is the subject of an application to the Commission under this Act is settled by conciliation, the Commission may:
(a) dismiss the application, or
(b) make an order on the agreed terms for settlement."
The Appeal to the Full Bench
Sections 187 and 188 Industrial Relations Act are both in Part 7 of Chapter 4 of that Act. They state:
" 187 Appeal to Full Bench from decision of Commission
The following may appeal to a Full Bench of the Commission against a decision of the Commission constituted by a single member:
(a) a party to the proceedings in which the decision was made,
(b) an industrial organisation, or an association registered under Chapter 6, affected by the decision,
(c) the Minister if the Minister considers that the public interest is, or is likely to be, affected by the decision,
(d) the President of the Anti-Discrimination Board if that President considers that the decision is inconsistent with the principles contained in the Anti-Discrimination Act 1977.
188 Appeals to Full Bench by leave only
(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.
(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.
(4) This section does not apply to an appeal made by the Minister."
On 23 July 2010 the Applicant filed a document relating to an appeal from Commissioner Bishop. The body of that document stated:
"A. The appellant seeks leave to appeal and appeals pursuant to Section 187 of Industrial Relation Act 1996 No 17 .
B. From a Decision of Industrial Relation Decision IRC2152 of 2008.
C. Of Commissioner Bishop C.
D. On 5 July 2010 .
E. Matters appealed against are:
1. Identifying a wrong issue:
I did not asked for the settlement as shown in the Commission, I requested the Respondent to apologise (not regret), and statement with my services certify that I was not dismissed from the work.
2. Making an erronerous finding:
The commissioner find that I received the financial remedy, but I did not received it until 5 July because the Respondent overrided the settlement by giving me checque [sic] in wrong name. The statement of employment certificate, excluded the reason for termination (was not as required). The statement of regret was not as I required (apologise) and was printed on non letter head of the respondent.
3. Reaching a mistaken conclusion:
a. The Commissioner decided that I undertaked not to lodge any objection to the commission further hearing the matter. (it is not correct).
b. The Commissioner decided that I received (Exhibit 9) and (Exhibit 10) but they was not as agreed.
4. The Respondent failed to pay the financial remedy until 22/7/2010.
5. The Respondent failed to comply with the settlement regarding not disclose any information about the matter in other procedures.
6. The matter of settlement was published on IRC website, which doesn't identify the reason for termination my employment.
F. The questions raised by the appeal are:
1. The Commissioner did not provide a natural justice:
I have required an Interpreter for me in the hearings, but the commissioner refused, while the commissioner tried to bring an interpreter for witnesses of the respondent. I could not understand what was happening in the hearing.
2. Identifying a wrong issue and made an erronerous finding:
a. The contents of settlement, I did not required it as it [is?].
I required Apologise for unfair dismissal.
c. I did not give instructions to my lawyer to accept regret statement, he told me that he will make apologise, and will give statement that they did not dismissed me.
3. The commissioner during the conciliation was acting under actation [dictation?].
4. Unreasonableness:
To make a settlement on no apologise, particulary I was 54 years old and I have never ever dismissed in my employment history, this unreasonable to accept less than apologise, or re-instatement.
G. Reasons why leave to appeal should be granted:
To refresh the cass [sic] to reveal all facts behind the dismissal, or making formal apologise for unfair dismissal, and send back to the Respondent their cheque.
H. Grounds of the appeal are:
1. Not providing natural justice.
2. Error in law.
3. identifying wrong finding.
4. Reaching a mistaken conclusion.
5. Acting under dictation.
6. Taking into account irrelevant consideration.I. Relief claimed:
1. Set aside the decision of the Commissioner.
2. Refresh the case, by referring the case to the hearing.
3. Arrang [sic] an interpreter for me in the hearing."The Full Bench of the Industrial Relations Commission, comprising Kavanagh J, Grayson DP and Connor C, heard that application on 11 November 2010.
The Full Bench delivered judgment on the application on 9 December 2010: Tareq Altaranesi and the Director General of the Department of Health in respect of Sydney South West Health Services [2010] NSWIRComm 164. The orders of the Full Bench were:
"1. Leave to appeal is refused.
2. The appeal is dismissed.
3. There shall be no order as to costs."These Proceedings
The Applicant commenced the proceedings now before this Court by summons on 3 May 2011. The relief he claims is:
"1 Set aside the decision of Full Bench of Industrial Relation, and
2 Cease the agreement made on 1 June 2008, and return money remedy to the Respondent, and
3 Review the matter of unfair dismissal 2010/2152 Industrial Relation Commission, in fresh procedure in Court of Appeal, and if it is not practicable, is to be in District Court.
4 Reserve the Costs for the procedure of Court of Appeal against the Respondent."
Previously, the Applicant had filed in the Court of Appeal registry a Notice of Intention to Appeal on 30 December 2010, followed by a Notice of Appeal on 7 February 2011. Handley AJA dismissed those proceedings on 18 April 2011, on the basis that they were incompetent because there was no appeal from a decision of the Industrial Relations Commission to this Court.
This Court's Jurisdiction
Rights of appeal were unknown to the common law. A right of appeal to this Court exists only if there is a statute conferring that right of appeal. No statute confers a right of appeal from the Full Bench of the Industrial Commission to this Court.
The Supreme Court of New South Wales had jurisdiction conferred on it, under the Australian Courts Act 1828 (Imp) (9 Geo IV c 83), to exercise such jurisdiction as the Court of King's Bench had in England. That included the power to issue prerogative writs of mandamus, certiorari and prohibition. The Supreme Court of New South Wales that now exists is, pursuant to s 22 Supreme Court Act1970 , the same court that was established in 1828. Section 69 Supreme Court Act has the effect of continuing the jurisdiction that the Court formerly had to grant a relief or remedy by way of writ (including of prohibition, mandamus or certiorari), but requires the remedy that is granted in exercise of that jurisdiction to take the form of a judgment or order, rather than a writ.
Section 145 Industrial Relations Act establishes the Industrial Relations Commission of New South Wales. The functions of the Commission include, under s 146(1)(b), resolving industrial disputes. Pursuant to s 156(1) Industrial Relations Act , a "Full Bench of the Commission consists of at least three members who are constituted as a Full Bench by the President for the purposes of a proceeding."
Section 179 Industrial Relations Act provides:
" 179 Finality of decisions
(1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal.
(2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal.
(3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law.
(4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:
(a) the Full Bench of the Commission in Court Session, or
(b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision.
(5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise.
(6) This section is subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law."
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 arose from an application to this Court to issue orders in the nature of certiorari to quash certain convictions in the Industrial Court of New South Wales. The Industrial Commission in Court Session is known by the name of the Industrial Court of New South Wales: s 151A Industrial Relations Act . Section 151(1) Industrial Relations Act provides:
"The Commission in Court Session is the Commission constituted by a judicial member or members only for the purposes of exercising the functions that are conferred or imposed on the Commission in Court Session by or under this or any other Act or law."
The progress of the Applicant's matter through the Industrial Commission at no stage involved the Industrial Court. The functions that are conferred or imposed on the Commission in Court Session are, at least predominantly, those listed in s 153(1) Industrial Relations Act . That list does not include proceedings under s 84 Industrial Relations Act . Our attention was not drawn to any other provision of legislation whereby any function concerning proceedings under s 84 was conferred or imposed on the Commission in Court Session.
I mention here that the Applicant submitted that ss 179(4)(a) and (b) Industrial Relations Act apply to the present proceedings. That submission is incorrect, as the present proceedings do not relate to any decision of the Commission in Court Session.
The decision of the High Court in Kirk related specifically to the power of the Supreme Court to make orders in the nature of prerogative relief concerning the Industrial Court. However, the reasoning of the High Court in Kirk depends upon principles that also apply to the power of this Court to make orders in the nature of prerogative relief concerning the Industrial Commission. Kirk held that the supervisory jurisdiction of a Supreme Court is a defining characteristic of such a Court ([98]), and State legislation that purports to take away from a State Supreme Court power to grant relief on account of jurisdictional error is beyond the State's legislative power ([100]). That limit on the State's legislative power is reconciled with the apparent width of the privative clause in s 179 by a process of construction. On its correct construction "decision" in s 179(1) should be read as not extending to a decision that is attended by jurisdictional error ([104]). However, s 179 is effective to prevent this Court from issuing certiorari for non-jurisdictional error of law on the face of the record ([90], [100]). (I do not read Director General, NSW Department of Health v Industrial Relations Commission of New South Wales [2010] NSWCA 47; (2010) 77 NSWLR 159 at [15], [22] and [24] as deciding otherwise. While an error of law on the face of the record can sometimes be the reason why a court or tribunal has engaged in jurisdictional error, an error of law on the face of the record is not necessarily a jurisdictional error. The reasons in Kirk expressly note at [100] that state legislation can deny the availability of relief for non-jurisdictional error of law appearing on the face of the record.)
If an order of the Industrial Commission is beyond jurisdiction, the granting of relief in the nature of certiorari enables that order to be quashed. However, this Court, when exercising a supervisory jurisdiction, does not have power to make any order in place of the order that has been quashed: Kirk at [110].
Orders 2 and 3
Because this Court does not have power to make any order in place of an order that has been quashed, orders 2 and 3 that the Applicant seeks in his Summons are beyond the power of this Court. If the order of the Full Bench were to be quashed, this Court would then return the matter to the Full Bench, so that it could reconsider the matter.
The Applicant submits that there are numerous reasons why the decision of the Full Bench was beyond its jurisdiction. As presented, his submissions had overlapping and interwoven themes. I will endeavour to separate them out and deal with them seriatim.
Full Bench Invoking the Wrong Source of Power?
The Applicant contends that a significant deficiency in the decision of the Full Bench is that his Notice of Appeal had invoked s 187 Industrial Relations Act , but the Commission had proceeded as though it was an application for leave to appeal under s 188. A misconstruction of the basis of its own jurisdiction could, at least in some circumstances, lead a court or tribunal into jurisdictional error.
However, in the present case, the Full Bench made no error of law in treating the case before it as one that required leave to appeal. Section 187 does not provide a freestanding and self-sufficient basis for the Full Bench to have jurisdiction to hear an appeal from a decision of the Commission constituted by a single member. Rather, the jurisdiction of the Full Bench to hear an appeal from a decision of the Commission constituted by a single member arises from the combined operation of (at the least) ss 187 and 188. Section 189 also provides time limits within which an appeal must be brought, but it is unnecessary to express a view about whether compliance with those time limits is essential for the Full Bench's jurisdiction.
Section 187 identifies who has standing to bring an appeal to the Full Bench. As a party to the proceedings in which Commissioner Bishop made her decision on 5 July 2010, the Applicant clearly had standing to appeal, under s 187(a). However, s 188 imposes conditions, additional to the standing of an appellant, that must be satisfied before an appeal lies to the Full Bench. In the present case the Full Bench acted correctly in proceeding on the basis that an appeal lay only if it granted leave.
Misapplication of UCPR 20.26 and 20.28?
One of the Applicant's bases of complaint, that he articulated in a passing reference at the hearing before Commissioner Bishop on 5 July 2010, and has repeated with greater clarity before the Full Bench and in this Court, is that the settlement before Commissioner Bishop was arrived at by a defective procedure. Quite separately to that, he contends that he was legally entitled to withdraw any acceptance that there might have been of an offer on 1 June 2010. The bases of both of those contentions is that he submits that the Commission was bound by the Uniform Civil Procedure Rules Part 20 .
The particular rules the Applicant invokes are UCPR 20.26 and 20.28. So far as relevant, UCPR 20.26 provides:
"(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.
(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.
(3) A notice of offer:
(a) must bear a statement to the effect that the offer is made in accordance with these rules, and
(b) [not presently relevant]
...
(6) An offer may be expressed to be limited as to the time it is open for acceptance.
(7) The following provisions apply if an offer is limited as to the time it is open for acceptance:
(a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial,
(b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial."
The Applicant submits that the offer of settlement that was made on 1 June 2010 breaches UCPR 20.26 in multiple ways. One is that the offer was not made "by notice in writing" , so UCPR 20.26(1) was not complied with. Another is that clauses 6 and 7 of the Terms of Settlement provided that the Supreme Court proceedings and the Local Court proceedings were settled with no order as to costs, and nothing was said about any costs in the Commission, so UCPR 20.26(2) was not complied with. Further, absence of a written notice of offer necessarily meant that UCPR 20.26(3)(a) was also not complied with. Finally, the Applicant submits that the offer did not allow either at least 28 days, or a reasonable time in the circumstances, in which it could be accepted, so UCPR 20.26(7) was not complied with.
Uniform Civil Procedure Rule 20.28 provides:
"(1) A party who accepts an offer may withdraw the acceptance in any of the following circumstances by serving written notice of withdrawal on the offeror:
(a) if the offer provides for payment of money, or the doing of any other act, and the sum is not paid to the offeree or into court, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides, or
...
(2) If acceptance of an offer is withdrawn:
(a) except as provided by paragraph (b), all steps in the proceedings that have been taken as a consequence of the offer having been accepted cease to have effect, and
(b) the court may give directions:
(i) to restore the parties as nearly as may be to their positions at the time of the acceptance, and
(ii) to give effect to any steps in the proceedings that have been taken as a consequence of the offer having been accepted, and
(iii) to provide for the further conduct of the proceedings,
and may do so either after the offer is withdrawn or when granting leave to withdraw the offer."
The Applicant submits that the offer provided for the payment of money, and the provision of the Statement of Service and Statement of Regret no later than 15 June, yet it was only after 15 June that the Second Respondent provided any of those things. The Applicant contends that he was therefore entitled to withdraw any acceptance of the offer that there might have been, and that he did so.
All those arguments fail. Uniform Civil Procedure Rule 1.5 identifies, by reference to Schedule 1, the bodies to which all or part of the UCPR applies, and in relation to each such body the provisions of the UCPR that are excluded from applying to that body. Schedule 1 identifies the Industrial Relations Commission (when constituted otherwise than as the Industrial Court) as one of the bodies to which the UCPR applies. However, Schedule 1 of the UCPR excludes UCPR Part 20 from applying in the Industrial Relations Commission (when constituted otherwise than as the Industrial Court). The non-application of UCPR Part 20 to the proceedings before Commissioner Bishop is a fatal flaw in these arguments of the Applicant.
In any event, even if UCPR Part 20 had applied in the Commission, it would not have had the consequences for which the Applicant contends. A contract to settle litigation will arise if a settlement offer is made and accepted. The contract will be valid even if the settlement offer does not comply with UCPR 20.26. The words "any party may" in UCPR 20.26(1) show that the procedure laid down by UCPR 20.26 is not the only way in which an offer to compromise proceedings may be made. Compliance with UCPR 20.26 may have consequences concerning the orders for costs that the court or tribunal makes. If an offer is made in accordance with UCPR 20.26 but is not accepted, and the party to whom the offer is made ultimately fares worse in the litigation than he or she would have fared under the offer, certain consequences flow under UCPR 42.13-42.17. In those courts and tribunals in which UCPR applies, the procedures of UCPR Part 20 must be gone through if a party wishes to attract those costs consequences. However, even in those courts and tribunals in which UCPR Part 20 applies, a party who does not wish to attract those costs consequences can still make an offer that does not accord with UCPR 20.26, and if that offer is accepted a valid contract can result.
Furthermore, UCPR 20.28 must be read bearing in mind that UCPR 20.25 provides that, in the Division in which UCPR 20.28 occurs, " offer means an offer of compromise referred to in rule 20.26" . That is the meaning that the word "offer" has wherever it appears in UCPR 20.28. In the present case, an offer of compromise of the type referred to in UCPR 20.26 was never made, and thus was never accepted. Thus, even if UCPR Part 20 applied to the proceedings in the Commission that are now in question, the occasion for UCPR 20.28 to operate would never have arisen.
Failure to Provide an Interpreter
The application by which the Applicant initiated proceedings in the Commission was a standard form that made provision for an applicant to state his first language. The form had separate lines for "English" and "other" , and had a box suitable for ticking alongside each of those words. The Applicant ticked the box for "English" but in a space alongside "other" he wrote "Arabic" . He also ticked the "yes" box alongside "Interpreter needed?" .
The Commission made arrangements for an Arabic language interpreter to attend at each of the hearings held before Commissioner McLeay and Commissioner Cambridge. However, the Commission did not provide an interpreter for the Applicant at the hearing on 1 June 2010.
At that hearing, neither the Applicant nor his counsel sought an adjournment on the basis that an interpreter was not available. Indeed, neither the Applicant nor his counsel made mention to the Commissioner of there being any kind of a problem arising from the lack of an interpreter. Quite early in the day the Commissioner and Mr Britt discussed the witnesses that Mr Britt would call. Concerning those witnesses, the Commissioner said, "we as per written request organised for interpreters in the Macedonian, Greek and Turkish language." Not even that specific reference to interpreters provoked a mention of there being a problem by reason of the absence of an Arabic interpreter.
The Applicant was the first witness called. He gave his evidence in English.
On the hearing of the present application the Applicant pointed to numerous places in the transcript of the hearing of 1 June 2010 that show, in his submission, that he was not understanding what was being said to him. It suffices for present purposes to say that the transcript of 1 June 2010 shows that there were some difficulties in communication between the Applicant and Mr Britt. It is not necessary for this Court to form its own view about the extent or seriousness of those difficulties, or whether those difficulties were able to be overcome.
The Applicant's letter to the Registrar of 22 June 2010, seeking to "refresh the case" gave only two reasons for his taking that course, namely "the respondent failed to produce statement of regretful, and statement of service, which meet my requirement as agreed." No mention was made at that stage of a problem having arisen by reason of an interpreter not being available on 1 June 2010.
The transcript of the proceedings before Commissioner Bishop on 5 July 2010 contains no mention of the Applicant contending that there was any kind of a problem arising from the absence of an interpreter on 1 June 2010, let alone a problem that affected the settlement.
On 5 July 2010 the Applicant, in response to a question from the Commissioner, confirmed that he appeared on his own behalf. When the Commissioner requested him to speak, he began by saying, "sorry, my English is not good, but I try, OK?" . He made no complaint about the absence of an interpreter on that day.
At the hearing before the Full Bench an affidavit of the Applicant was read. After referring to an earlier request for the registry to provide an interpreter, the affidavit continued:
"2. On one day of May 2010, I telephoned the registry said words in effect 'I would like to confirm that an interpreter will be available on 1, 2, 3, 15 June, as was done in previous directions', and I advised with confirmation.
3. On 1 st June 2010, date of the hearing, No interpreter was available, and I was not informed that no interpreter, in order to arrange one on my own. I faced a lot of misunderstanding many thing in cross examination, there was confusion in interpretation of what I was asked form.
4. On 1 June 2010 the Commissioner made direction to require Macedonian, Greek and Turkish for the witnesses of the Respondent. And the Commissioner did not require an interpreter for me (the Applicant)."
An affidavit of Fawzia Ismail was also read at the Full Bench hearing. It included:
"On one day of May 2010, Mr Altaranesi telephone the registry of Industrial Relation, and I heard Mr Altaranesi said words in effect "I make sure, please provide an interpreter for me on 1, 2, 3, 4 and 15 June as before'."
At the hearing before the Full Bench the Applicant was assisted by an interpreter. Concerning the unavailability of an interpreter before the Commissioner, the following exchange occurred.
"KAVANAGH J: As to the interpreter question, you have given evidence that you wanted to have an interpreter at the hearing before Commissioner Bishop?
INTERPRETER: Is there evidence in relation to that?
KAVANAGH J: You gave evidence before Commissioner Bishop. You gave evidence in English before Commissioner Bishop. You did not object to giving your evidence in English before Commissioner Bishop. You do not argue that the Commissioner misunderstood you in any way. Why were you denied natural justice when you didn't have an interpreter?
INTERPRETER: Sorry, he would like to respond, your Honour. Before the sessions before Commissioner McLean [sic] and before Commissioner Cambridge, the Registrar, they brought in an interpreter for all these events.
KAVANAGH J: You heard my question. Where do you know Commissioner Bishop misunderstood you?
INTERPRETER: The transcript is clear that there were things that were not clear to me. I couldn't understand them.
KAVANAGH J: What things?
INTERPRETER: It was in the questions Mr Britt was asking me in cross-examination. He said that you understand what I said in my question. I told him I didn't understand.
KAVANAGH J: Tell me where that is?
INTERPRETER: I noted in my reply.
KAVANAGH J: If you look at page 27.
INTERPRETER: Where is page 27?
KAVANAGH J: Page 27 point 30. Get your blue book? Page 27, page 94 which is page 27 of the transcript. At point 30 on the page you did, on one occasion say, 'I'm not understanding your question sir.' But then you went on to say it that you did see an affidavit and you saw no reason to respond. After you complained, the issue was cleared up, wasn't it?
INTERPRETER: There are things in the transcript. The transcript wasn't clear. They couldn't make sense of some of the things that I was saying."
The reasons of the Full Bench included at [19]-[23]:
"The learned Commissioner, on 5 July 2010, accepted that under s 174 the appellant's application should be given consideration. The appellant gave evidence but without the assistance of an interpreter. He was self-represented. When a question caused him some difficulty, an inquiry was made of him and he said 'Sorry, my English is not good, but I try, okay?'.
Mr Altaranesi elected to go ahead and give evidence. We are satisfied the transcript does not support there was any breach of the natural justice principles in the conduct of the hearing.
In her decision, Commissioner Bishop held there had been compliance by the respondent with the Terms of Settlement. The learned Commissioner was satisfied the terms themselves provided for a conclusion of the proceedings on payment of monies which monies had been paid and accepted by the appellant; there had been compliance by the respondent with the other terms of settlement; comment by the appellant was not required by the Terms of Settlement as to the content of the Statement of Regret. It is noted the Statement of Regret has been re-issued on letterhead. Commissioner Bishop then considered the effect of s 174 of the Act and the relevant authorities on the application of s 174, finding, in effect, there was no invalidity or illegality in the agreement nor any unconscionable conduct by the respondent. The learned Commissioner then dismissed the primary application.
We are satisfied, given the learned Commissioner's reasoning, it was open to her to dismiss the application under s 84 after concluding to her satisfaction there were no grounds under s 174 to reconsider the settlement terms.
Therefore, the appeal is no more than a challenge to a Decision with which the appellant does not agree. It turns on particular facts. Further, it has no wider application than to the interests of the parties. No new issue of principle or any matter that has not already been the subject of substantial jurisprudence is raised. There is no arguable claim the Commission has fallen into error. Accordingly, the matter does not warrant a grant of leave."
Earlier in its decision, the Full Bench said, at [2]:
"Bishop C had began an arbitration on 1 June 2010 of a claim brought under s 84 of the Industrial Relations Act1996 by Mr Altaranesi asserting he had been dismissed unfairly by the respondent. He asked for reinstatement. Mr Altaranesi was represented by a Solicitor and Counsel at the arbitration. The transcript reveals, at the hearing, the appellant had the assistance of an Arabic Interpreter (in prior conciliations he had also had the assistance of an Arabic Interpreter)." (emphasis added)
The statement that the Applicant had the assistance of an Arabic interpreter on 1 June 2010 is clearly wrong. The transcript of 1 June 2010 confirms that no interpreter was present that day.
The issue before the Full Bench was whether it should grant leave to appeal against Commissioner Bishop's declining to re-open the proceedings, and the Commissioner's consequential order for the proceedings to be dismissed. The Full Bench is required to grant leave to appeal if it forms the opinion that the matter is of such importance that in the public interest leave should be granted: s 188(2). However, the Full Bench was not of that opinion. Thus, it had a broad discretion about whether the case was a suitable one in which to grant leave to appeal.
No submission was made to Commissioner Bishop on 5 July 2010 about there having been any problem, on 1 June 2010, arising from the absence of an interpreter. On 5 July 2010 a central issue for the Commissioner was whether there was a reason not to treat the proceedings as having been disposed of by the Terms of Settlement. Those Terms of Settlement had been signed by the Applicant, as well as by his solicitor, and had been arrived at after the Applicant had had assistance from both counsel and solicitor. In these circumstances, the factual error that the Full Bench made, about whether an Arabic interpreter was present on 1 June 2010, is not the sort of error that has resulted in the Full Bench acting outside its jurisdiction. Further, the Full Bench decided that it was satisfied that the transcript did not support the proposition that there had been any breach of natural justice principles in the hearing. This was a decision that was open to the Full Bench in exercising its jurisdiction.
Commissioner's Misunderstanding of Whether Payment Made?
At the hearing on 5 July 2010, Mr Britt contended that the Terms of Settlement had been complied with, because all the documents it called for had been sent to the Applicant's solicitor on or before 15 June. When the Applicant was then called on to speak, the following exchange occurred:
"ALTARANESI: The settlement is not only the money, it is not only financial. I received a cheque, I cannot get it.
COMMISSIONER: What do you mean, you cannot get it, the solicitor has it or?
ALTARANESI: I have sent it back to him.
COMMISSIONER: All right."
The Commissioner's decision on 5 July 2010 included the statement:
"Mr Altaranesi had advised the Commission that he has received the cheque and has not returned it."
As far as it goes, that statement is accurate, in the sense that he had not returned it to the Second Respondent.
The Applicant submits that what he was trying to convey was that he had received a cheque, but had been unable to turn it into money. He submits that the Commissioner misunderstood what he was trying to say.
Even if the Commissioner had misunderstood him in that respect, by the time of the hearing in the Full Bench the Applicant had received and banked a replacement cheque for the settlement sum. In these circumstances, the Full Bench was not acting outside its jurisdiction in failing to regard this as a reason for granting leave to appeal.
Inadequacy of Statement of Service and Statement of Regret
The Applicant submits that the Statement of Service with which he was provided is manifestly inadequate because it does not state why the termination occurred, and that without a statement of why the termination occurred the Statement of Service would be quite useless to him in obtaining another job. He submits that for the Commissioner to regard that document as compliance with clause 8 of the Terms of Settlement was in itself Wednesbury unreasonable behaviour, and that the failure of the Full Bench to recognise the practical uselessness of the Statement of Service was an act of Wednesbury unreasonableness on the part of the Full Bench, resulting in its decision being beyond jurisdiction.
Similarly, the Applicant submits that the Statement of Regret that was supplied by the Second Respondent could not possibly have been properly regarded as a compliance with the Terms of Settlement, either by the Commissioner or the Full Bench. The Statement of Regret said in substance no more than that the Second Respondent regretted that the Applicant had hurt feelings. The Applicant submits that what he wanted, and what he was entitled to receive, was an apology. He submits that the failure of the Full Bench to appreciate the inadequacy of the Statement of Regret involved the Full Bench acting outside its jurisdiction.
In my view, it had been open to the Commissioner to regard the documents that were provided as a performance of the obligations of the Second Respondent under the Terms of Settlement. The Terms of Settlement said nothing about the precise content of the Statement of Service and Statement of Regret, and laid down no procedure for fixing their content. The Full Bench was not acting outside its jurisdiction in failing to hold that the Statement of Service and the Statement of Regret were so inadequate that leave to appeal should have been granted.
Incorrect Return to Conciliation?
A theme of the Applicant's submissions before this Court was that the Commissioner on 1 June 2010 was in error in hearing an arbitration between the parties in the course of the morning, but then reverting to conciliation in the afternoon. As I understand it, the Applicant puts that point in three ways. The first is that the Commission has no power to revert to conciliation once an arbitration has started. The second is that before 1 June 2010 there had already been more than one attempt at conciliation, and the Commission can attempt conciliation of a dispute at most twice. The third is that, in the circumstances of the particular case, the Commissioner should not have reverted to conciliation after the Applicant had been cross-examined in the morning. The third submission was incompletely articulated, but I get the impression that the nub of the Applicant's complaint is that he was put at a disadvantage by the conciliation occurring after the cross-examination. His submission seems to be that the disadvantage arose, at least in part, from the cross-examination having proceeded without an interpreter, and with him not fully understanding what was going on.
The submission about a Commissioner lacking the power to revert to conciliation after an arbitration has commenced is incorrect. Sections 86 and 87 Industrial Relations Act provide:
" 86 Conciliation of applications
The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation.
87 Arbitration where conciliation unsuccessful
(1) When, in the opinion of the Commission, all reasonable attempts to settle the applicant's claim by conciliation have been made but have been unsuccessful, the Commission is to determine the claim by making an order under section 89, dismissing the application or making any other order it is authorised to make under this Act.
(2) Nothing in this section prevents further conciliation from being attempted at any time before the Commission makes such an order."
The Commission has a statutory duty under s 87 to try by all means it considers proper and necessary to settle a claim by conciliation. What particular means are "proper and necessary" in a particular case is a matter for the decision of the Commission. Even if there have been previous conciliations, the Commission has power to engage in further conciliation if, in the particular circumstances, it considers doing so is proper and necessary to settle an applicant's claim. The orders under s 89 that are referred to in s 87(1) include orders for reinstatement, re-employment, payment of money to an applicant, and other relief that can be granted if the Commission determines an application made under s 84 in a way that is favourable to the applicant. In the present case, on 1 June 2010 the Commission had neither made an order under s 89 nor dismissed the application nor made any other order. Thus, the combined operation of s 86 and s 87(2) made clear that the Commissioner had power to resume conciliation after an arbitration had proceeded during the morning.
Further, s 173 Industrial Relations Act provides:
"(1) The member of the Commission who attempted conciliation of an industrial dispute or other matter is not to exercise arbitration powers in relation to the dispute or matter if a party to the arbitration proceedings objects and requests that a different member of the Commission exercise arbitration powers.
(2) A member of the Commission is not, for the purposes of this section, taken to have attempted conciliation merely because:
(a) the member attempted conciliation after having begun to exercise arbitration powers, ..."
Section 173(2)(a) specifically contemplates that a member of the Commission might attempt conciliation after having begun the exercise of arbitration powers.
To support the argument that the Commission can attempt conciliation of a particular matter at most twice, the Applicant drew our attention to Practice Note No. 17 issued by the Industrial Relations Commission. In particular, clause 5(b) of that Practice Note states:
"Ordinarily there should be only one conciliation, however, a Member may permit a further conciliation conference."
He submits that the Practice Note contemplates that there will be at most two conciliation conferences, yet in the present case there were more than two.
On the material before us it is unclear whether there had been more than one attempt at conciliation prior to 1 June 2010, or whether the previous occasions on which the matter was before the Commission comprised one attempt at conciliation and numerous directions hearings. Even so, I will assume in the Applicant's favour that there had been more than one attempt at conciliation. Even on that assumption, the second way in which he puts the argument does not succeed. While a Practice Note can give practical guidance about how a court or tribunal usually exercises its powers, it cannot limit a statutory duty such as that which arises under s 86.
As to the third way of putting it, no error is shown in the Commissioner's decision to resume conciliation. Indeed, when she was requested by counsel for both parties to do so, and she had no reason to believe that settlement discussions were likely to be futile, the decision to resume conciliation was well within the Commissioner's discretion.
Supervisory Power of Full Bench?
The Applicant submits that it follows from Kirk that the Full Bench has an unremoveable jurisdiction to supervise the activities of a Commissioner. The submission was not developed, but as I understand it the Applicant was contending that for the Full Bench to decline to exercise this supervisory role (or, perhaps, even to fail to understand that it had that supervisory role) was itself a jurisdictional error on the part of the Full Bench.
That submission cannot succeed. Kirk held that a State Supreme Court has an unremoveable jurisdiction to supervise other tribunals for jurisdictional error. However, it says nothing about a tribunal created by statute, as the Full Bench is, having any such supervisory role.
The Statement of Regret on Letterhead
One way in which the Applicant contends that the Full Bench departed from its jurisdiction concerns its role in the Second Respondent coming to provide the Applicant with a Statement of Regret on the letterhead of the Second Respondent.
At least from 22 June 2010 the Applicant has been dissatisfied with both the content of the Statement of Regret that he received, and also with the fact that it was on blank paper rather than on letterhead.
On 17 November 2010, after the hearing in the Full Bench but before the Full Bench had delivered its decision, the Applicant received a call from the Registry asking him to come to collect a letter. On attending the Registry, he was given a letter addressed to him care of the IRC. It contained a document on the letterhead of the Second Respondent, the content of which was identical with the Statement of Regret with which he had previously been provided.
The letter had come to the IRC enclosed in a letter which the Second Respondent addressed to Justice Kavanagh. The text of the covering letter was:
"Attached please find correspondence to Mr Altaranesi, which has been issued as agreed in the NSW Industrial Relations Commission (IRC) on 11 November 2010, in the matter of Altaranesi v NSW Health (No. 635 of 2010), appeal of decision made by Commissioner Bishop.
The Area Health Service understands that the IRC will contact Mr Altaranesi for collection of the documents."
On 17 November 2010 the Applicant wrote to the Second Respondent, objecting to it having communicated with the presiding judge after the decision had been reserved.
In the course of its reasons for judgment (delivered, the reader will recall, on 9 December 2010), the Full Bench said:
"It is noted that the Statement of Regret has been re-issued on letterhead."
The Statement of Regret on letterhead came to be provided as follows. In the course of the hearing before the Full Bench on 11 November 2010 the following exchange had occurred:
KAVANAGH J: There was one point taken about the Statement of Regret, that it didn't have the letterhead on it.
BRITT: That's right, your Honour, it doesn't have the letterhead on it. We're happy to provide a copy with the letterhead on it.
KAVANAGH J: Would you do that, Mr Britt?
BRITT: We're happy to do that, your Honour.
KAVANAGH J: Mr Altaranesi, I read your papers and I noted your objection that the Statement of Regret did not have the letterhead of the Sydney South West Area Health letterhead. It seems strange to the Court. I've pointed that out to Mr Britt. He has agreed to provide to you that letter on the letterhead, in accordance with the date 11 June 2010. That wrong will be righted. I know you object to the content. I'm not addressing the content, I am addressing the issue of the missing letterhead.
INTERPRETER: Why should I pay for this mistake?"
At the conclusion of the day's hearing the transcript records that after Kavanagh J said "The Court adjourns" the following further exchange occurred.
"KAVANAGH J: Mr Britt, I did ask for a timetable for the revised documents to be passed to Mr Altaranesi.
BRITT: Your Honour, we are happy to provide your Associate with a copy within seven days because there is always a debate whether Mr Altaranesi gets documents so he can come and collect it.
KAVANAGH J: I will make the appropriate arrangement."
The Applicant submits that a court "has no general power to rectify administrative injustice" . I will not pause to consider the correctness of that proposition. The Commission is not a court, except (as was not the case here) when it is sitting in Court Session. The Applicant also submits that he did not agree to receive the Statement of Regret on letterhead, and the Full Bench did not make any direction that it be provided. He questioned whether the words recorded on the transcript that I have set out at [86] were actually spoken.
There is no reason to believe that the communication with Kavanagh J was anything other than the letter whose text I have set out at [82] above. While that letter said that the Statement of Regret was "issued as agreed ... on 11 November 2010" , that does not suggest that the Applicant agreed that it should be issued. A more likely reading is that the Second Respondent agreed with Kavanagh J, in the exchange set out at [85] above, to issue it.
The Applicant also submits that the fact that the Full Bench made arrangements for the Statement of Regret to be re-issued on letterhead demonstrates that the Full Bench regarded that Statement as inadequate. Even if that is so, it does not lead to the conclusion that the Full Bench acted outside its jurisdiction in refusing leave to appeal.
The sole evidentiary support for doubting whether the exchange set out at [86] occurred is a statement in an affidavit of the Applicant.
"I am aware that the last word in the hearing dated 11 November 2010 was 'the Court Adjourns'. Nothing after that."
Any question that arises in a court about whether the transcript of a hearing in another court or tribunal is defective can sometimes be decided on the basis of evidence, but starting with a presumption of fact that an official transcript is accurate, and exercising caution in allowing the official record to be supplemented: Government Insurance Office of NSW v Fredrichberg (1968) 118 CLR 403 at 410, 423; Builders Licensing Board v Mahoney (1986) 5 NSWLR 96 at 98 per Priestley JA (with whom Kirby P and Hope JA agreed); Goktas v Government Insurance Office of NSW (1993) 31 NSWLR 684 at 687-688 per Kirby P, cf 698-700 per Cripps JA (Meagher JA agreeing); Re Minister for Immigration and Multicultural Affairs; ex parte Holland [2001] HCA 76; (2001) 185 ALR 504 at [27] per Kirby J; Eastman v R [2000] HCA 29; (2000) 203 CLR 1 at [182] per Gummow J; Re Application by the Chief Commissioner of Police (Vic) [2005] HCA 18; (2005) 214 ALR 422; 79 ALJR 881 at [72] per Kirby J. See also Sara v Balasubramanian (NSWCA, 12 April 1995, unreported); R v M [1999] QCA 269; (1999) 107 A Crim R 267 at [23]-[25]; JD Heydon, Cross on Evidence 8 th Australian edition 2010 at [1830] and cf Vakauta v Kelly (1988) 13 NSWLR 502 at 523-525 per McHugh JA. The presumption of accuracy of the transcript is one of fact. It is a presumption of the type that Hodgson JA described in Hill v Woollahra Municipal Council & Ors [2003] NSWCA 106 at [52] as being:
"... associated with a reasonable inference based on what ordinarily happens in the ordinary course of human affairs: see McLean Brothers & Rigg Ltd v Grice (1906) 4 CLR 835 at 849-51 per Griffiths CJ. In deciding whether the presumption of regularity is rebutted, this inference from the ordinary course of human affairs carries some weight, which may vary according to the proved circumstances."
What the Applicant seeks to achieve in the present case is not to supplement the transcript, but to subtract from it. There is a greater inherent likelihood that words are omitted from a transcript or mistranscribed than that three entire sentences, of two different speakers, appear in a transcript when none of those words were said. I doubt that the evidence of the Applicant, set out above, would suffice to overcome the presumption of correctness of the transcript. However, it is not necessary to make a final decision concerning that matter.
The making of orders in the nature of prerogative writs is always a matter of discretion. Even if the Full Bench had gone beyond its jurisdiction in facilitating provision of the Statement of Regret on letterhead (a matter about which I expressly make no decision), or if the words I have set out at [86] were never said, it would be too trivial to warrant any intervention by this Court.
Bias of the Commissioner?
In this Court the Applicant submitted that the Commissioner had been biased against him. No such allegation had been foreshadowed in the application for leave to appeal that the Applicant lodged in the Commission. However, his written submissions to the Full Bench submitted that there was "pre-intention for not providing an interpreter for me" , and that the Commissioner coerced him to face the cross-examination.
There is no scrap of evidence that supports the contention that the failure to provide an interpreter was a course deliberately decided upon by the Commissioner. Nor does the transcript of the hearing on 1 June 2010 in any way bear out that the Commissioner coerced the Applicant into facing cross-examination. Rather, the transcript shows that, following a short adjournment, the Commissioner said:
"Mr Steele has conferred with his instructing solicitor and the applicant and we are proceedings [sic]. Yes Mr Steele?"
Mr Steele then opened, called the Applicant, elicited brief evidence-in-chief from him, and cross-examination then followed.
Early in the hearing on 1 June 2010, and before any opening from counsel or taking of evidence, the Commissioner said:
"I am certainly happy to - if the parties seek it - to engage in conciliation with the parties now that we have started the formal hearing."
The Commissioner went on to discuss some of the pros and cons of the case proceedings, in the course of which she said:
"... it's generally been my experience - and I have dealt with hundreds, if not thousands of unfair dismissals and in the old days I very rarely had matters go to hearing. One cannot settle a matter by conciliation until such time as the applicant has moved off wanting reinstatement or reemployment. Once the applicant is looking at money and respondent is prepared to look at money, I generally find those matters can settle. But while ever the applicant still seeks reinstatement and reemployment and that is vigorously opposed by a respondent, that will not settle. It's only when you start talking money that that will settle. And I can count on the fingers of one hand over the years the people that have in fact been reinstated as - well, I've only done it on four occasions, people that have been reinstated as a consequence of a hearing when it's been vigorously opposed by an employer, and that's usually in cases where there was serious and wilful misconduct alleged and it was found that the serious and wilful misconduct did not in fact take place. Therefore it would have been harsh, unjust and unreasonable not to reinstate the particular persons involved."
The Applicant submits that that involved the Commissioner acting improperly in placing him under pressure to settle.
At the hearing before the Commissioner on 5 July 2010 the Applicant made no complaint about the settlement having been obtained through the pressure of the Commissioner or anyone else. Indeed, no complaint was made about any aspect of the way in which the matter had been conducted on 1 June 2010. I do not accept that these matters show that the Full Bench acted outside its jurisdiction in failing to grant leave to appeal concerning the Commissioner's decision on 5 July 2010.
Unreasonableness of Saying Reinstatement Seldom Ordered?
The Applicant also submits that the Commissioner's remark about seldom having ordered reinstatement was Wednesbury unreasonable.
I take it that the basis of this submission is that the Commissioner has a range of discretion concerning precisely what steps she will take in endeavouring to settle a claim by conciliation, and that making that remark was outside the permissible range. I do not agree. The Commissioner was not making a statement about this particular case, but about her general experience concerning applications for reinstatement. It was within her powers, under s 86, to make such a statement. The Full Bench did not act outside its jurisdiction in failing to regard her making of that statement as a reason for granting leave to appeal.
Failure to Discontinue Supreme Court Proceedings
The Applicant attended the Supreme Court on 18 June 2010, when the Supreme Court proceedings were listed. The Second Respondent did not appear on that day. The Applicant submits that the failure of the Second Respondent to attend and seek to discontinue the proceedings is a breach of the agreement.
The Second Respondent had sent a Notice of Discontinuance of the Supreme Court proceedings to the Applicant's solicitor on 10 June 2010. In the ordinary course of events, it would be for the Applicant or his solicitor to sign and file the Notice of Discontinuance. It may be that, by reason of the letter that contained the Notice of Discontinuance going to the wrong address, the Applicant's solicitor did not receive the Notice of Discontinuance in sufficient time to file it before the listing on 18 June 2010. Even if that is so, it would not show that there had been any breach of the Terms of Settlement, as the Terms of Settlement did not fix a date by which the proceedings in the Supreme Court were to be discontinued. In any event, even if there had been a breach of the Terms of Settlement concerning the time or manner of discontinuing, that would not, by itself, provide any ground for re-opening the proceedings before Commissioner Bishop.
The transcript of the hearing on 5 July 2010 discloses no mention at all of anything to do with discontinuance of the Supreme Court proceedings. The Full Bench was not acting outside its jurisdiction in failing to regard these matters as a reason for granting leave to appeal.
Leave for Lawyer to Appear
Section 166 Industrial Relations Act provides:
"(1) A party to proceedings before the Commission may appear personally or be represented by an Australian legal practitioner or by an agent who is not such a practitioner.
(2) However, a party is not entitled to be represented in conciliation proceedings or ... by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission."
Leave is not required for a lawyer to appear in an arbitration. However, the Applicant submits that he was not entitled to have his own lawyer representing him in the conciliation, because he did not give leave to the Commission for that to happen.
This submission misreads s 166(2). It is the Commission who must give leave for a legal practitioner to appear before it in a conciliation. In the present case, where both parties were represented by lawyers on 1 June 2010, the Commissioner should be taken to have implicitly given leave for the lawyers to appear, by allowing them to take a role in the proceedings.
Lloyd v Veterinary Surgeons Investigating Committee
The Applicant submits that the decision of this Court in Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456; (2005) 65 NSWLR 245 shows that he is entitled to a merit-based appeal without first establishing an actual or arguable question of law or error of law. Lloyd does not bear upon the present case. It concerned the circumstances in which a veterinary surgeon had a right of appeal under s 34 of the Veterinary Surgeons Act1986 . That is a different statutory context to the statutory context in which the Full Bench was considering whether to grant leave to appeal to the Applicant.
Proposed Orders
I propose that the summons be dismissed with costs.
WHEALY JA : I agree with Campbell JA.
MEAGHER JA : I agree that the summons should be dismissed with costs for the reasons given by Campbell JA.
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